Possibly, but the Wiki entry notes the big reason SOE and Blizzard won't have to worry about EQEmu anytime soon: content. The draw of EQ and WoW isn't the game engine underneath the servers. It's the artwork, quest storylines, items, all the content that those engines manipulate. Coding the engine's the easy part, creating all that content is hard, time-consuming and resource-intensive. And frankly there aren't that many people who're truly good at it.
Except that I don't depend on the EULA or ToS for ownership of my copy. I depend on the Uniform Commercial Code, which gave me ownership of that copy when I forked over my cash and the store handed me my copy. This is the case for any mass-market retail consumer transaction. If you live in one of the two states that implemented the UCITA this may not be the case, but in the other 48 the UCC controls the transaction in the absence of any other contract at the time of the sale. I wasn't required to agree to the EULA at the time of the sale, so it's terms are irrelevant to ownership of the copy. And no, the term in the EULA that says I'm only receiving a license isn't relevant either, since that's not part of the UCC's terms and I didn't agree to any other terms at the time of sale.
Now, the EULA does become relevant when I connect to Blizzard's servers, since I'm required to agree to it before I'm allowed to connect. But that's tied to the use of their servers, not ownership of the copy of the software. And that's why I think Blizzard's on solid grounds for an "inducement to breach contract" suit: WoWGlider can't be used for anything at all except to breach the EULA and violate the ToS, the authors of WoWGlider can't reasonably not know this, and they market it to people specifically for that purpose. There's no need to resort to tortured misreadings of copyright law.
Unfortunately for Blizzard, points 2 and 4 fail because of USC Title 17 Section 117 paragraph 117(a)(1). Since my right to make that copy in RAM as an essential step in running the program comes from copyright law itself, I don't have to depend on Blizzard's EULA for that right. So if Blizzard takes away that right under the EULA, I still have that right via Title 17.
That said, WoWGlider is still a violation of the ToS and EULA, and Blizzard probably does have a cause of action against the authors where the only purpose of their creation is to induce Blizzard's customers to breach their contracts with Blizzard. I don't think the WoWGlider authors have any defense against that, given that you can't make WoW interact with anything except Blizzard's servers.
Somewhat wrong. Blizzard does not own the copyright on derivative works, unless they meet some fairly stringent criteria for containing no original work other than Blizzard's. Derivative or not, infringing or not, the copyright on anything not written by Blizzard still belongs to the author. What the author cannot do, simply, is distribute the portion of the derivative work belonging to Blizzard without Blizzard's permission.
This has already been settled in the area of photography.
This is about as good an idea as RFC 3514 describing the Evil Bit. Like 3514, it'll essentially guard you against unwitting interaction with the people you don't have to worry about unwitting interactions with. The bad guys will, of course, ignore the rules and hijack.safe names to host decidedly unsafe content. But we knew this.
The catch is that the RIAA is suing under copyright law. They sued her for direct infringement, and tried to keep her in the suit on direct infringement, and copyright law says that you cannot be held liable for direct infringement unless you personally infringed. It doesn't make an exception for children. So in this particular case the specific details of copyright law trump the general principles that apply elsewhere.
Note that if the RIAA had dropped her from the suit when it filed suit against her kids, they'd've been in the clear and wouldn't be facing the bad precedent they're fighting to avoid now. But they tried to be greedy and grab the other bone and, well, dog, bone, reflection, river.
I'd say "Wrong.". Your position assumes that J. Random Individual has a right to ownership of that item in the first place. That isn't the case. They have rights to specific items, but not to any arbitrary item in general. I don't happen to agree that, just because I worked to obtain or discover something, every other person in the world who didn't suddenly gets an ownership right to it.
It's close enough to theft for practical purposes. The essence of theft is depriving the legal owner of the benefits of possessing the item. The primary benefit of copyright ownership is the ability to control the distribution of copies and thus get paid for those copies. Copyright infringement, to one degree or another depending on the scale, deprives the copyright owner of the primary benefit of their ownership. In short, the work hasn't been stolen but the money that would be paid for copies of that work has, and that is theft.
Now, I don't agree with the RIAA's position either. There are certain rights of ownership of a copy of a work that go along with buying that copy. The RIAA wants to keep for itself not only the rights to the work but all the rights to those copies that would normally follow the copies, eg. the right to use a particular copy anywhere you want, or the right to sell it to someone else (where that sale doesn't involve making another copy, merely conveying the existing copy). That's not kosher either.
Both the RIAA and the "Copying stuff isn't theft!" sides need to grow up. They're both acting like spoiled 5-year-olds, and I find my self wishing for my Mom's solution to that: a good solid application of the lilac switch, and send both of 'em to their rooms until they decide they can play like civilized human beings.
When I hear people talk about piracy, I think about one thing from long ago. When MP3s were brand spanking new, you could find tons of pirate FTP sites and Usenet newsgroups carrying illegal rips of music. And then there was one site, MyMP3.com, that had a different policy: you could download songs only if you could prove you physically had a copy of the CD at hand (by providing a hash of actual data off the CD). Now, if you're trying to drive out piracy, which do you target: the tons of completely-illegal sites, or the one site trying to insure it doesn't hand out illegal copies?
The RIAA threw all it's resources into driving MyMP3.com out of business, putting almost nothing into tracking down and eliminating the completely pirate sites.
Unfortunately it's not illegal downloads that killed that store. My reasons for not going to a music store:
The prices are too high for what I want. Not much the store can do about that. But whatever the reasons are, whatever the store can or can't do about it, it simply isn't worth it to me to pay the price of a full CD when there's only 1 or 2 tracks on it that I actually like. I want to pay, but given the other demands on my wallet I can't justify paying that much per song.
What I want isn't on the shelf. I want individual songs. All the store can get are albums. When again exactly was the customer expected to buy what they don't want just because the RIAA doesn't want to sell what the customer wants?
What I want isn't available. I want my music in digital form, in a format where I can not have to worry about whether or not it'll play on all my equipment, where I won't have to worry about headaches moving it between places I've a legal right to use it.
I can't take the risks legitimate stuff exposes me to. From incompatible DRM modules to Sony's flat-out rooting my machine and exposing it to every black-hat out there, too many legitimate CDs are an unacceptable risk to the stability and security of my computers for me to be able to risk putting them into my drive. And if I can't play the CD where I most often want to, why bother buying it?
That's more than enough reasons for me to not bother patronizing a music store anymore, and we haven't even gotten to the lack of variety in what many stores carry. Try finding KISS's original albums, let alone albums from the 40s and 50s.
Oh, excuse me, I don't seem to have mentioned piracy anywhere. Maybe that ought to be a hint?
A diff tool helps not one bit with editing code. Remember that I don't care what the differences are, I'm reading the original code and writing new code. I don't need a diff of the old code (and diff against what?), and there isn't any new code to diff until I'm done writing it (at which point why bother diffing something I'm not working on anymore?). You're suggesting the right tool for the wrong problem.
As for eyesight, my corrected vision at monitor distance is 20/10 thank you very much. But 20-40 lines of code in a fixed-pitch font, plus bits of vertical whitespace to seperate logical bits of code, plus editor menu-bar, status-bar and other in-window UI overhead, plus window-frame overhead, adds up to more than you seem to imagine. Ditto horizontally. And the window doesn't need to fill the whole screen, exceeding half the screen width or about 2/3rds of the height is sufficient and that's really easy to do.
The only glitch in that plan: how many Vonage customers are going to voluntarily move to the very company that just screwed over their chosen phone setup? Were I a Vonage customer, "Verizon" would be a 4-letter word to me right about now.
A large chunk of code needs to be transcribed, but I'm not working on a large chunk at a time. I go routine by routine, and each one is only 20-40 lines long. That's pretty much one vertical screenful, 80-100 columns wide. It's not huge by any standard, but it's enough that I can't fit both routines on a single monitor at the same time without overlapping windows and obscuring parts of the code that I need to look at. It's the equivalent of working with 2 sheets of paper at once: easy if you've got 17" to lay them side-by-side, a real pain if you've only got 12" and have to have half of one sheet covered up.
Not quite, really. I'm working on a project now that involves a relatively small amount of data. I'm redesigning an application, and a large chunk of the code needs simply transcribed with relatively small changes to accomodate different data structures. That doesn't really involve much, two editor windows (original code to be transcribed and new code as I write it) and a model window showing the new data structure layout. Despite that not being much data, it's a lot easier on a dual-monitor system where I've got enough screen real estate to have all three windows open with sufficient context on each to see everything at a readable size. On a single-monitor system I'm constantly having to bring windows to the top to read them and then remember exactly what I read as I bring another window to the top to type in the new code.
For me, most of the time a usable window occupies more than half of a screen horizontally and vertically. When my windows don't, and I can fit them all on a single screen without overlapping, a single monitor works well. But once I have either so much data in a single window or a sufficient number of windows that I can't fit it all on one monitor without having windows overlap or scroll, multiple monitors are the only way to avoid page-flipping.
And this surprised your company's management? After all, the Chinese aren't dumb. How much of a jump is it from seeing the American part out-source everything but upper management to China to the Chinese part deciding to in-source upper management and lose that huge drag on their profitability that resides on the eastern side of the Pacific?
I would guess that they could have settled early on and not incurred quite as much cost.
This is where Darl went off the tracks too. IBM could have settled early and not have paid as much in immediate legal fees, true. But IBM calculated "cost" in a different manner. They added in the cost of all the copycat suits that'd come crawling out of the woodwork after they proved willing to pay danegeld. They also added in the cost of lost business. IBM sells heavily into the government, military and financial sectors, and not just in the US. Those sectors demand vendors who are absolutely trustworthy. A settlement with SCO would've been an admission that IBM stole SCO's code for their own benefit, and that wouldn't go over well with a lot of IBM's customers. It's not just Unix either, SCO's claims go straight to stuff IBM invented years ago and uses heavily in their mainframe systems, the heart of their business. Add in all that and fighting the case out starts to look relatively cheap.
They wouldn't serve papers on her by e-mail, but a short e-mail from SCO's attorneys saying "We want to serve a deposition notice on you, when and where would be convenient to do that?" should either a) elicit a response with a time and location, or b) be usable as evidence to show the court you made reasonable efforts to serve the papers. I'd note in passing that SCO's filing shows scant documentation of concrete steps taken to locate her and serve papers. I can think of several: e-mail her, contact her former employers to see if they either have contact information or can forward a message, contact her family (if Maureen O'Gara can find PJ's mother's home, SCO's lawyers certainly should be able to), or even simply open the phone book for the city PJ lives in and start calling every P. Jones in town (there can't be that many of them). Even if all of those fail, they'd be documented in the filings. So where is the record of what SCO tried?
Well, technically the small print can shield the advertiser from liability. But judges have adopted a fuzzy view: you can use small print, but not too small. Some companies tried that, and the rulings consistently said that the notice has to be reasonably close in prominence to the actual discrepancy. That's why the "as shown" price in car ads is smaller than the "starting from" price, but not too much smaller: car dealers tried the unreadably-small option and got shot down.
Microsoft here has the worst of it: they didn't make mention of it in small print, they didn't mention at all in their ads that there were versions of Vista other than what were shown. And having the info available on their Web site is only going to fly with the courts if a reasonable, ordinary customer would be expected to know to go to their Web site to check instead of simply depending on the accuracy of the ad.
Actually, what you say is why this suit's unlikely to be simply thrown out. As you said, MS advertised only the versions with the niftiest features. Not a peep in the ads about anything lower down on the scale. And one thing courts have done over the years, in response to games with the fine print is to say "The product is what the advertising says it is.". That's why, in car ads, when they quote the "starting from $X" price you always see, in type that's not too much smaller, an "as shown, $Y" after it. A couple of dealerships ran ads that showed the top-of-the-line luxury variant with all the extras, and then said "starting from $X" where the price they advertised was for the bottom-end stripped-down variant. And when a couple of consumers sued, the judge said "You showed that model. You said it started at $X. You didn't mention or show any other models, nor mention anything about that $X price not being for the model shown. So the consumers have every right to assume that that $X starting price applies to that car exactly as you advertised it.". So in this case it's quite possible that the courts will say that Vista with Aero and all the bells and whistles was what Microsoft advertised, none of the advertising made any mention of lower-end versions or lack of Aero and the bells and whistles, so the buyers are entitled to assume that "Vista Ready" means exactly that: ready to run exactly what Microsoft was advertising, not something that looks completely different and wasn't shown anywhere in the advertising.
That's actually a pretty good description. The EPA had said "Sorry, we don't have authority under the law to regulate CO2.". SCOTUS simply said "Yes, you do. The law says you do. Now that that's cleared up, go back and say why you will or won't regulate CO2 as you're allowed to do. If anyone wants to challenge your decision, that's for another day.".
My immediate counter would be "Well then, why isn't Viacom doing exactly that themselves?". There's been recent documentation of infringing material on Viacom's own YouTube-like site. If having the hosting company scan for infringing material is, in Viacom's eyes, entirely reasonable, why doesn't Viacom take this entirely reasonable step themselves? Doesn't seem really fair to me for Viacom to demand that someone else do what Viacom's unable or unwilling to do as well in exactly the same circumstance.
The distinction is that YouTube isn't vacuuming up the content. Individuals are posting it there. YouTube simply provides the hosting. Not everyone can afford to run their own co-located servers to host their own videos, and the safe-harbor provision of the DMCA recognizes that the companies simply running the servers should have a way of putting the responsibility for what users do on the shoulders of the users.
This is much akin to the way UPS, FedEx and the USPS work. They move packages from point A to point B. If they were directly liable for everything that might be in those packages, they'd be forced to open and inspect every single one. They couldn't operate like that. Moreover, people who use them couldn't work like that. Companies and individuals need to send confidential documents around with some confidence they won't be opened and read by random people at the shipping company. So the law says that it's the shipper who's liable, not the shipping company, unless the shipping company has some reasonable grounds to believe, just by looking at the outside of the package, that there's something wrong. This lets UPS/etc. provide service to everybody without you having to let them see every bit of everything you'd like to ship through them and without having to worry about being sued into oblivion just because Joe Moron decided to use them to send death threats to his boss and didn't mention it to them.
The DMCA safe-harbor provision is modeled after that. A hosting company is responsible for providing hosting. They aren't responsible for standing over every user's shoulder every second watching and approving/vetoing every single thing the user does with the service. Responsibility for what the user does falls first on the user, as long as the hosting company takes a hands-off approach.
It isn't a matter of a difference in court rulings. In most of the previous cases the defendants settled with the RIAA to avoid a court fight. The difference with these recent cases is that in them the defendants refused to settle and actually filed counterclaims and presented evidence and basically went forward with the actual court part of things. And as it turns out, the RIAA had as little case as we believed they had, and the defendants started to win. The people who decided to avoid the risk and settle have no legal grounds for complaint when people who were willing to take the risk are now winning. "But we could've won too!" is answered by "Yes, if you'd fought. But you didn't, did you?".
Plaintiff can't drop the case without defendant's consent after defendant's filed any response to the complaint. That's the point at which defendant's officially begun to incur costs. Up until then plaintiff can decide they made a mistake, after that they're on the hook.
In this particular case, I have this image of the RIAA lawyers scurrying in a panic to get their voluntary dismissal to the courthouse before the target's lawyer decides to officially file a response.
I'd note that even if your company has a response plan, you may find it either completely useless or so general that it doesn't provide any help. Look at the article's point #1: it's almost nothing but "If $X, you may need $Y.". And it's far from complete. That's going to be a flaw in any security response plan: it's likely to not address the actual problem you face. Problems that you've thought of tend to get caught earlier before they turn into full-blown incidents, it's the ones nobody thought of that are most likely to bite you badly and it's exactly those that a plan won't cover. About the only part of the plan that'll be guaranteed to be useful is the part explaining what parts of the system are responsible for what and how to lock them down to preserve the evidence while you figure out where the breach is and what you need to do next. Beyond that you're into a twisty maze of little possibilities, all almost but not quite completely unlike each other, and what you need most isn't a plan but someone with enough Clue to analyze the situation and formulate a plan to fit it on the fly.
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Possibly, but the Wiki entry notes the big reason SOE and Blizzard won't have to worry about EQEmu anytime soon: content. The draw of EQ and WoW isn't the game engine underneath the servers. It's the artwork, quest storylines, items, all the content that those engines manipulate. Coding the engine's the easy part, creating all that content is hard, time-consuming and resource-intensive. And frankly there aren't that many people who're truly good at it.
Except that I don't depend on the EULA or ToS for ownership of my copy. I depend on the Uniform Commercial Code, which gave me ownership of that copy when I forked over my cash and the store handed me my copy. This is the case for any mass-market retail consumer transaction. If you live in one of the two states that implemented the UCITA this may not be the case, but in the other 48 the UCC controls the transaction in the absence of any other contract at the time of the sale. I wasn't required to agree to the EULA at the time of the sale, so it's terms are irrelevant to ownership of the copy. And no, the term in the EULA that says I'm only receiving a license isn't relevant either, since that's not part of the UCC's terms and I didn't agree to any other terms at the time of sale.
Now, the EULA does become relevant when I connect to Blizzard's servers, since I'm required to agree to it before I'm allowed to connect. But that's tied to the use of their servers, not ownership of the copy of the software. And that's why I think Blizzard's on solid grounds for an "inducement to breach contract" suit: WoWGlider can't be used for anything at all except to breach the EULA and violate the ToS, the authors of WoWGlider can't reasonably not know this, and they market it to people specifically for that purpose. There's no need to resort to tortured misreadings of copyright law.
Unfortunately for Blizzard, points 2 and 4 fail because of USC Title 17 Section 117 paragraph 117(a)(1). Since my right to make that copy in RAM as an essential step in running the program comes from copyright law itself, I don't have to depend on Blizzard's EULA for that right. So if Blizzard takes away that right under the EULA, I still have that right via Title 17.
That said, WoWGlider is still a violation of the ToS and EULA, and Blizzard probably does have a cause of action against the authors where the only purpose of their creation is to induce Blizzard's customers to breach their contracts with Blizzard. I don't think the WoWGlider authors have any defense against that, given that you can't make WoW interact with anything except Blizzard's servers.
Somewhat wrong. Blizzard does not own the copyright on derivative works, unless they meet some fairly stringent criteria for containing no original work other than Blizzard's. Derivative or not, infringing or not, the copyright on anything not written by Blizzard still belongs to the author. What the author cannot do, simply, is distribute the portion of the derivative work belonging to Blizzard without Blizzard's permission.
This has already been settled in the area of photography.
This is about as good an idea as RFC 3514 describing the Evil Bit. Like 3514, it'll essentially guard you against unwitting interaction with the people you don't have to worry about unwitting interactions with. The bad guys will, of course, ignore the rules and hijack .safe names to host decidedly unsafe content. But we knew this.
The catch is that the RIAA is suing under copyright law. They sued her for direct infringement, and tried to keep her in the suit on direct infringement, and copyright law says that you cannot be held liable for direct infringement unless you personally infringed. It doesn't make an exception for children. So in this particular case the specific details of copyright law trump the general principles that apply elsewhere.
Note that if the RIAA had dropped her from the suit when it filed suit against her kids, they'd've been in the clear and wouldn't be facing the bad precedent they're fighting to avoid now. But they tried to be greedy and grab the other bone and, well, dog, bone, reflection, river.
I'd say "Wrong.". Your position assumes that J. Random Individual has a right to ownership of that item in the first place. That isn't the case. They have rights to specific items, but not to any arbitrary item in general. I don't happen to agree that, just because I worked to obtain or discover something, every other person in the world who didn't suddenly gets an ownership right to it.
It's close enough to theft for practical purposes. The essence of theft is depriving the legal owner of the benefits of possessing the item. The primary benefit of copyright ownership is the ability to control the distribution of copies and thus get paid for those copies. Copyright infringement, to one degree or another depending on the scale, deprives the copyright owner of the primary benefit of their ownership. In short, the work hasn't been stolen but the money that would be paid for copies of that work has, and that is theft.
Now, I don't agree with the RIAA's position either. There are certain rights of ownership of a copy of a work that go along with buying that copy. The RIAA wants to keep for itself not only the rights to the work but all the rights to those copies that would normally follow the copies, eg. the right to use a particular copy anywhere you want, or the right to sell it to someone else (where that sale doesn't involve making another copy, merely conveying the existing copy). That's not kosher either.
Both the RIAA and the "Copying stuff isn't theft!" sides need to grow up. They're both acting like spoiled 5-year-olds, and I find my self wishing for my Mom's solution to that: a good solid application of the lilac switch, and send both of 'em to their rooms until they decide they can play like civilized human beings.
When I hear people talk about piracy, I think about one thing from long ago. When MP3s were brand spanking new, you could find tons of pirate FTP sites and Usenet newsgroups carrying illegal rips of music. And then there was one site, MyMP3.com, that had a different policy: you could download songs only if you could prove you physically had a copy of the CD at hand (by providing a hash of actual data off the CD). Now, if you're trying to drive out piracy, which do you target: the tons of completely-illegal sites, or the one site trying to insure it doesn't hand out illegal copies?
The RIAA threw all it's resources into driving MyMP3.com out of business, putting almost nothing into tracking down and eliminating the completely pirate sites.
Unfortunately it's not illegal downloads that killed that store. My reasons for not going to a music store:
- The prices are too high for what I want. Not much the store can do about that. But whatever the reasons are, whatever the store can or can't do about it, it simply isn't worth it to me to pay the price of a full CD when there's only 1 or 2 tracks on it that I actually like. I want to pay, but given the other demands on my wallet I can't justify paying that much per song.
- What I want isn't on the shelf. I want individual songs. All the store can get are albums. When again exactly was the customer expected to buy what they don't want just because the RIAA doesn't want to sell what the customer wants?
- What I want isn't available. I want my music in digital form, in a format where I can not have to worry about whether or not it'll play on all my equipment, where I won't have to worry about headaches moving it between places I've a legal right to use it.
- I can't take the risks legitimate stuff exposes me to. From incompatible DRM modules to Sony's flat-out rooting my machine and exposing it to every black-hat out there, too many legitimate CDs are an unacceptable risk to the stability and security of my computers for me to be able to risk putting them into my drive. And if I can't play the CD where I most often want to, why bother buying it?
That's more than enough reasons for me to not bother patronizing a music store anymore, and we haven't even gotten to the lack of variety in what many stores carry. Try finding KISS's original albums, let alone albums from the 40s and 50s.Oh, excuse me, I don't seem to have mentioned piracy anywhere. Maybe that ought to be a hint?
A diff tool helps not one bit with editing code. Remember that I don't care what the differences are, I'm reading the original code and writing new code. I don't need a diff of the old code (and diff against what?), and there isn't any new code to diff until I'm done writing it (at which point why bother diffing something I'm not working on anymore?). You're suggesting the right tool for the wrong problem.
As for eyesight, my corrected vision at monitor distance is 20/10 thank you very much. But 20-40 lines of code in a fixed-pitch font, plus bits of vertical whitespace to seperate logical bits of code, plus editor menu-bar, status-bar and other in-window UI overhead, plus window-frame overhead, adds up to more than you seem to imagine. Ditto horizontally. And the window doesn't need to fill the whole screen, exceeding half the screen width or about 2/3rds of the height is sufficient and that's really easy to do.
The only glitch in that plan: how many Vonage customers are going to voluntarily move to the very company that just screwed over their chosen phone setup? Were I a Vonage customer, "Verizon" would be a 4-letter word to me right about now.
A large chunk of code needs to be transcribed, but I'm not working on a large chunk at a time. I go routine by routine, and each one is only 20-40 lines long. That's pretty much one vertical screenful, 80-100 columns wide. It's not huge by any standard, but it's enough that I can't fit both routines on a single monitor at the same time without overlapping windows and obscuring parts of the code that I need to look at. It's the equivalent of working with 2 sheets of paper at once: easy if you've got 17" to lay them side-by-side, a real pain if you've only got 12" and have to have half of one sheet covered up.
Not quite, really. I'm working on a project now that involves a relatively small amount of data. I'm redesigning an application, and a large chunk of the code needs simply transcribed with relatively small changes to accomodate different data structures. That doesn't really involve much, two editor windows (original code to be transcribed and new code as I write it) and a model window showing the new data structure layout. Despite that not being much data, it's a lot easier on a dual-monitor system where I've got enough screen real estate to have all three windows open with sufficient context on each to see everything at a readable size. On a single-monitor system I'm constantly having to bring windows to the top to read them and then remember exactly what I read as I bring another window to the top to type in the new code.
For me, most of the time a usable window occupies more than half of a screen horizontally and vertically. When my windows don't, and I can fit them all on a single screen without overlapping, a single monitor works well. But once I have either so much data in a single window or a sufficient number of windows that I can't fit it all on one monitor without having windows overlap or scroll, multiple monitors are the only way to avoid page-flipping.
And this surprised your company's management? After all, the Chinese aren't dumb. How much of a jump is it from seeing the American part out-source everything but upper management to China to the Chinese part deciding to in-source upper management and lose that huge drag on their profitability that resides on the eastern side of the Pacific?
I would guess that they could have settled early on and not incurred quite as much cost.
This is where Darl went off the tracks too. IBM could have settled early and not have paid as much in immediate legal fees, true. But IBM calculated "cost" in a different manner. They added in the cost of all the copycat suits that'd come crawling out of the woodwork after they proved willing to pay danegeld. They also added in the cost of lost business. IBM sells heavily into the government, military and financial sectors, and not just in the US. Those sectors demand vendors who are absolutely trustworthy. A settlement with SCO would've been an admission that IBM stole SCO's code for their own benefit, and that wouldn't go over well with a lot of IBM's customers. It's not just Unix either, SCO's claims go straight to stuff IBM invented years ago and uses heavily in their mainframe systems, the heart of their business. Add in all that and fighting the case out starts to look relatively cheap.
They wouldn't serve papers on her by e-mail, but a short e-mail from SCO's attorneys saying "We want to serve a deposition notice on you, when and where would be convenient to do that?" should either a) elicit a response with a time and location, or b) be usable as evidence to show the court you made reasonable efforts to serve the papers. I'd note in passing that SCO's filing shows scant documentation of concrete steps taken to locate her and serve papers. I can think of several: e-mail her, contact her former employers to see if they either have contact information or can forward a message, contact her family (if Maureen O'Gara can find PJ's mother's home, SCO's lawyers certainly should be able to), or even simply open the phone book for the city PJ lives in and start calling every P. Jones in town (there can't be that many of them). Even if all of those fail, they'd be documented in the filings. So where is the record of what SCO tried?
Well, technically the small print can shield the advertiser from liability. But judges have adopted a fuzzy view: you can use small print, but not too small. Some companies tried that, and the rulings consistently said that the notice has to be reasonably close in prominence to the actual discrepancy. That's why the "as shown" price in car ads is smaller than the "starting from" price, but not too much smaller: car dealers tried the unreadably-small option and got shot down.
Microsoft here has the worst of it: they didn't make mention of it in small print, they didn't mention at all in their ads that there were versions of Vista other than what were shown. And having the info available on their Web site is only going to fly with the courts if a reasonable, ordinary customer would be expected to know to go to their Web site to check instead of simply depending on the accuracy of the ad.
Actually, what you say is why this suit's unlikely to be simply thrown out. As you said, MS advertised only the versions with the niftiest features. Not a peep in the ads about anything lower down on the scale. And one thing courts have done over the years, in response to games with the fine print is to say "The product is what the advertising says it is.". That's why, in car ads, when they quote the "starting from $X" price you always see, in type that's not too much smaller, an "as shown, $Y" after it. A couple of dealerships ran ads that showed the top-of-the-line luxury variant with all the extras, and then said "starting from $X" where the price they advertised was for the bottom-end stripped-down variant. And when a couple of consumers sued, the judge said "You showed that model. You said it started at $X. You didn't mention or show any other models, nor mention anything about that $X price not being for the model shown. So the consumers have every right to assume that that $X starting price applies to that car exactly as you advertised it.". So in this case it's quite possible that the courts will say that Vista with Aero and all the bells and whistles was what Microsoft advertised, none of the advertising made any mention of lower-end versions or lack of Aero and the bells and whistles, so the buyers are entitled to assume that "Vista Ready" means exactly that: ready to run exactly what Microsoft was advertising, not something that looks completely different and wasn't shown anywhere in the advertising.
That's actually a pretty good description. The EPA had said "Sorry, we don't have authority under the law to regulate CO2.". SCOTUS simply said "Yes, you do. The law says you do. Now that that's cleared up, go back and say why you will or won't regulate CO2 as you're allowed to do. If anyone wants to challenge your decision, that's for another day.".
My immediate counter would be "Well then, why isn't Viacom doing exactly that themselves?". There's been recent documentation of infringing material on Viacom's own YouTube-like site. If having the hosting company scan for infringing material is, in Viacom's eyes, entirely reasonable, why doesn't Viacom take this entirely reasonable step themselves? Doesn't seem really fair to me for Viacom to demand that someone else do what Viacom's unable or unwilling to do as well in exactly the same circumstance.
The distinction is that YouTube isn't vacuuming up the content. Individuals are posting it there. YouTube simply provides the hosting. Not everyone can afford to run their own co-located servers to host their own videos, and the safe-harbor provision of the DMCA recognizes that the companies simply running the servers should have a way of putting the responsibility for what users do on the shoulders of the users.
This is much akin to the way UPS, FedEx and the USPS work. They move packages from point A to point B. If they were directly liable for everything that might be in those packages, they'd be forced to open and inspect every single one. They couldn't operate like that. Moreover, people who use them couldn't work like that. Companies and individuals need to send confidential documents around with some confidence they won't be opened and read by random people at the shipping company. So the law says that it's the shipper who's liable, not the shipping company, unless the shipping company has some reasonable grounds to believe, just by looking at the outside of the package, that there's something wrong. This lets UPS/etc. provide service to everybody without you having to let them see every bit of everything you'd like to ship through them and without having to worry about being sued into oblivion just because Joe Moron decided to use them to send death threats to his boss and didn't mention it to them.
The DMCA safe-harbor provision is modeled after that. A hosting company is responsible for providing hosting. They aren't responsible for standing over every user's shoulder every second watching and approving/vetoing every single thing the user does with the service. Responsibility for what the user does falls first on the user, as long as the hosting company takes a hands-off approach.
It isn't a matter of a difference in court rulings. In most of the previous cases the defendants settled with the RIAA to avoid a court fight. The difference with these recent cases is that in them the defendants refused to settle and actually filed counterclaims and presented evidence and basically went forward with the actual court part of things. And as it turns out, the RIAA had as little case as we believed they had, and the defendants started to win. The people who decided to avoid the risk and settle have no legal grounds for complaint when people who were willing to take the risk are now winning. "But we could've won too!" is answered by "Yes, if you'd fought. But you didn't, did you?".
Plaintiff can't drop the case without defendant's consent after defendant's filed any response to the complaint. That's the point at which defendant's officially begun to incur costs. Up until then plaintiff can decide they made a mistake, after that they're on the hook.
In this particular case, I have this image of the RIAA lawyers scurrying in a panic to get their voluntary dismissal to the courthouse before the target's lawyer decides to officially file a response.
I'd note that even if your company has a response plan, you may find it either completely useless or so general that it doesn't provide any help. Look at the article's point #1: it's almost nothing but "If $X, you may need $Y.". And it's far from complete. That's going to be a flaw in any security response plan: it's likely to not address the actual problem you face. Problems that you've thought of tend to get caught earlier before they turn into full-blown incidents, it's the ones nobody thought of that are most likely to bite you badly and it's exactly those that a plan won't cover. About the only part of the plan that'll be guaranteed to be useful is the part explaining what parts of the system are responsible for what and how to lock them down to preserve the evidence while you figure out where the breach is and what you need to do next. Beyond that you're into a twisty maze of little possibilities, all almost but not quite completely unlike each other, and what you need most isn't a plan but someone with enough Clue to analyze the situation and formulate a plan to fit it on the fly.